In the private sector, there’s only one legal way for employers to pay overtime — time-and-a-half for every hour over forty hours in a given work week. It’s illegal for private employers to compensate overtime hours in any other manner. That includes “compensatory time” or “comp time,” which some private employers unlawfully try to use as overtime compensation in lieu of properly paying time-and-a-half or “premium compensation.”

Conversely, public employers can pay their employees’ overtime with compensatory time under very strict rules. Like regular overtime pay, public employees’ compensatory time is also earned at a rate of one-and-a-half compensatory days for every hour worked over forty hours in a given week. In order for public employers to pay compensatory time in lieu of regular overtime pay, there must be an agreement or understanding between the employer and its employees entered into before the work is performed. There are also rules concerning the total amount of compensatory time that an employee may accrue and the preservation, use, and “cashing out” of accrued but unused compensatory time.

Public employees must be allowed to use compensatory time within a reasonable period after making a request to use it if the use does not unduly disrupt the operations of the government agency. In order for a public employer to deny use of compensatory time, the employer must show more than that granting the time off would be an inconvenience. Instead, the employer has to prove that granting the request would impose an unreasonable burden on the agency’s ability to provide services of acceptable quality and quantity to the public during the time of the employee’s absence. At the same time, public employers can legally compel the use of compensatory time and force their employees to use compensatory time.

One mistake that public employers often make is forgetting to pay their employees while the employees are using compensatory time. While on compensatory time, public employees still must be paid their regular rate of pay.

Today in the case of Tina Lee v. State of Iowa, http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20120525/07-1879.pdf, the Iowa Supreme Court held that the State of Iowa, including all of its departments and agencies, cannot be used under the Family and Medical Leave Act in Iowa state court. Such claims have to instead be brought in federal court. The court’s decision was somehat based on the concept of “sovereign immunity.” So what is sovereign immunity?

Sovereign immunity began with an old English legal maxim that “the king can do no wrong.” Well, we don’t have monarchial kings in the United States, but we do have governments. The principle of sovereign immunity has been transposed here to mean that you can’t sue the government unless it lets you. This rule applies to most types of legal claims, including those for personal injury or wrongful death and car accidents.

Certainly the government has the power to expressly eliminate the government’s own sovereign immunity from suit and allow you to sue it. Prime examples of that are federal and state laws under which you can sue the government in tort for personal injuries, etc. Such laws include the Federal Tort Claims Act, the Iowa Tort Claims Act, and Iowa’s Governmental Subdivisions Tort Claim Act. Each of those laws, subject to various procedural requirements, defenses, exceptions, exemptions, and immunities, allow you to sue the government under limited circumstances.

Another way that you can get around sovereign immunity and sue the government is through “implied” or “constructive” waiver. Iowa’s courts (unlike the federal courts, which only recognize express waivers of sovereign immunity) have decided that since they’re the ones who made up the sovereign immunity rule, they have the power to take away sovereign immunity if they feel like it. Constructive waiver of sovereign immunity can occur when the state voluntarily enters into a legal relationship with a private citizen, such as a landowner or as a party to a contract. At that point, it’s not fair to allow the government to engage with private citizens while simultaneously hiding behind the cloak of sovereign immunity. In other words, the government is legally responsible and has no sovereign immunity for the legal relationships it voluntarily creates. Otherwise, can you imagine having a contract with the state or a county or a city that the government could breach at will with no recourse to you?

Having said that, recognition of implied or constructive waiver of sovereign immunity is rare and has only occurred on a few occasions in special situations. Generally, if you find yourself suing the government, you’re doing so because the state has expressly allowed you to do so by enacting an express statutory waiver of sovereign immunity.

The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of Product: First Fitness® Trampolines with Handlebars

Units: About 40,000

Manufacturer: Aqua-Leisure Industries Inc., of Avon, Mass.

Hazard: Metal fatigue can cause the handlebar to break away during use, posing a risk of laceration from exposed metal surfaces or other injury from a fall.

Incidents/Injuries: Aqua-Leisure has received four reports of handlebars breaking from the metal connection joint during use. No injuries have been reported.

Description: This recall involves First Fitness Kid’s First trampolines with handlebars. The child-size toy trampolines have a red and blue metal handlebar, a blue nylon deck guard and a black jumping deck. “First Fitness” is embossed on the jumping deck in white letters. The trampolines can be identified by model number FF-6902TR and Toys R Us SKN 491463. The model and store numbers can be found on the lower right corner of the back of the packaging. A sewn-in tag on the bottom of the deck lists the factory date code of five numbers followed by “GLTX.”

Sold Exclusively at: Toys “R” Us stores nationwide from September 2010 through April 2012 for between $45 and $70.

Manufactured in: China

Remedy: Consumers should immediately take the recalled trampolines from children and contact Aqua-Leisure’s recall hotline for a full refund.

New information from the U.S. Consumer Products Safety Commission about a serious danger of strangulation by Tots In Mind crib tents and play yard tents:

WASHINGTON, D.C. – The U.S. Consumer Product Safety Commission (CPSC) and five retailers are announcing a voluntary recall to provide refunds to consumers who own crib tents and play yard tents made by Tots in Mind, Inc.

CPSC is warning parents and caregivers who own these products that infants and toddlers are at risk of serious injury or death due to strangulation and entrapment hazards presented by these products. Tots in Mind recalled the play yard tents in July 2010 and offered a repair kit that is no longer available. The company is no longer in business and has stopped all sales. CPSC staff urges parents and caregivers to stop using these crib tents and play yard tents immediately. Do not attempt to repair these products.

CPSC is aware of 27 tent failures including one fatality and one serious injury that occurred between January 1997 and April 2012 from crib tents and play yard tents made by Tots in Mind, Inc. In 2008, a two year old boy died after becoming entrapped between the bottom rail of a play yard tent and the top rail of a play yard. The fatality was reported in a prior recall with the firm in July 15, 2010.

In 2007, a two year old boy sustained a catastrophic brain injury when the crib tent affixed to his crib tent inverted and the product’s broken rod trapped him at the neck. The remaining 25 reports to CPSC involved inverted crib tents—entrapments between the tent and the crib/play yard or failures of the tent fabric and zippers. Three of these 25 reports also resulted in injuries; in one such case, a parent reported finding her child turning blue and entrapped between the product and the top rail of the play yard.

Since Tots in Mind, Inc. is out of business, retailers who sold these products have stepped up to offer refunds or store credit to consumers. The crib tents and play yard tents can present an entrapment and strangulation hazard to infants and toddlers if the dome portion inverts inside the crib or play yard, or if the product becomes partially detached from the crib or play yard. The recalled products were sold at numerous retail stores including Bed Bath & Beyond/Buy Buy Baby, Burlington Coat Factory, Toys R Us/Babies R Us, Walmart and online on websites including Amazon.com, for between $60 and $85.

Consumers should contact the store listed below where the crib tent was purchased to receive either a refund or store credit, depending on the retailer. If consumer is unsure of where the crib tent was purchased, see return policy for individual retailers below on their website:

The recall includes various models of about 330,000 crib or play yard tents. Consumers can identify their tent by the 2”x 1½” label with Tots In Mind logo located on the non-mesh portion near the top of the tent:

A line of trampolines sold exclusively at discount retail giant Walmart has been recalled by the manufacturer in an effort to avoid products liability claims due to a fall hazard. The recall involves the Sportspower BouncePro 14′ Trampoline. The netting around the trampoline can break, allowing children to fall through the netting and be injured. The manufacturer has received 17 reports of the net breaking, resulting in 11 injuries including broken bones, back and neck injuries, and contusions.

The recall involves the Sportspower BouncePro 14′ Trampolines with brown mesh netting. UPC codes 68706404210 and 68706404244 are printed on the trampoline box. “Sportspower BouncePro 14″ and “TR-14-63-A” are printed on a plate on the leg of the trampoline frame. The trampolines are surrounded by brown netting measuring about 6 feet high on the perimeter of the trampoline. The netting is designed to contain individuals bouncing on the trampoline.

These trampolines were sold exclusively at Walmart stores nationwide from February 2009 through February 2012 for about $275. Consumers should stop using the trampolines immediately and contact Sportspower to receive replacement black netting for the trampoline.

The U.S. Consumer Products Safety Commission recently issued a reminder about various recent product recalls involving bicycles. Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss. I’ll be happy to see if I can give you a hand.

WASHINGTON, D.C. – Now that spring is here, the U.S. Consumer Product Safety Commission (CPSC) is reminding consumers to check to see if their bicycles, bicycle components or accessories have been recalled before using them. Recalled bicycles, components and accessories can be dangerous and cause an accident, resulting in injury or even death. If you have a recalled product, contact the firm for the remedy. Once that’s taken care of, remember to properly strap on your bike helmet!

Check out these recent bicycle-related recalls. You can find out more about these recalls and others at our website www.cpsc.gov.

Note: by clicking on any of the images below, you can view a larger version.

A child can place his or her fingers in the opening at the grab bar’s hinge mechanism. When the consumer lifts the grab bar to remove the child from the seat, the child’s fingertips can be caught in the hinge mechanism, posing a laceration and fingertip amputation hazard to the child.

When you seek time off for a medical condition under the Family and Medical Leave Act (“FMLA”), your employer has a right to verify the need for medical leave by obtaining a second and even a third opinion from other doctors. At the same time, under limited circumstances it’s also permissible for your employer to contact your own doctor to discuss the FMLA medical provider certification you’ve provided.

Federal law prohibits your employer from requesting additional information from your own doctor beyond that required by the federally-mandated healthcare provider certification form. But your employer may contact the health care provider for purposes of clarification and authentication of the medical certification To make such contact, the employer must use a health care provider, a human resources professional, a leave administrator, or a management official. Under no circumstances may the employee’s direct supervisor contact the employee’s health care provider.

“Authentication” means giving the health care provider a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document; no additional medical information may be requested. “Clarification” means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response.

Unfortunately, this is one of those laws that employers can usually violate without consequence. The FMLA attaches no penalty to an employer’s unauthorized contact with a healthcare provider. You can sue, but you have to prove monetary damages caused by the unauthorized contact. If you think about it, an unauthorized contact with your doctor can’t really financially damage you, so it falls into the category of a “technical” violation for which there’s no legal claim because there’s no provable damages. That was the conclusion of the Iowa Court of Appeals in the recent decision of Melvin Hayes v. Vermeer Manufacturing Co., in which the court held that there was no FMLA liability for an unauthorized medical contact because the employee could not prove any damages stemming from the contact.

FMLA cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions. I can help you with any employment law or labor law questions that you might have. Please feel free to contact me for a free initial consultation about employment law or labor law.